Another Important CAT Decision in Relation to Nuisance Pets and Costs
The recent case of Halton Standard Condominium Corporation No. 490 v. Paikin is another case involving a nuisance dog. In this case, the CAT determined that the dog in question was a nuisance (in contravention of the corporation’s Declaration and Rules) because the dog was being allowed to urinate and defecate on the balcony (with resulting disturbance to the resident below).
The CAT said:
All that is clear is that the Respondent has allowed her dog to defecate and urinate on her balcony, that she has not cleaned up the resulting mess, and that this has a significant impact on the neighbour below. This is unacceptable and must be remedied.
The evidence included some documentation indicating that the dog in question might be a service animal or support animal. From a review of the decision, it seems that the CAT was unable to decide this, and therefore considered any Human Rights issue to be one of the “unresolved issues” in the case. In any event, it appears that the CAT concluded that service animals would still have to comply with any “no nuisance” provisions in the corporation’s Declaration and Rules.
The CAT ultimately held that, in the circumstances, the condominium corporation had the right to require the removal of the dog in accordance with provisions in the corporation’s Declaration and Rules.
The CAT ordered the condominium corporation to first try to resolve the dispute through communications with the Respondent owner. But the CAT went on to say that:
If the Board determines that further communication with the Respondent is not appropriate, or if after such communication it is still satisfied that the dog is a nuisance and must be removed, it may give notice in writing to the Respondent giving her at least 30 days to make arrangements to remove the dog from the condominium.
In terms of the costs:
The CAT ordered the Respondent to cover part of the corporation’s pre-CAT costs (for two lawyer’s letters sent to the Respondent), based upon an indemnification provision in the corporation’s Declaration. The CAT only ordered the Respondent to pay for the second lawyer’s letter. The CAT did not order the Respondent to pay for the first letter because the condominium corporation had not made previous efforts to communicate with the Respondent (before engaging a lawyer). The CAT said:
As a general rule, a condominium should make good faith attempts to resolve a dispute with an owner before involving counsel with associated legal costs.
That CAT also declined to order the Respondent to pay $51.97 for the cost to courier the second letter which the CAT felt was “not warranted”. [In my view, a couriered letter is often a good idea to make sure that the violator definitely receives the letter, and without delay. So, I find this disappointing.]
The CAT also declined to order the Respondent to pay almost $15,000 for legal costs and HST incurred by the corporation in relation to the CAT process itself. The CAT said that there was no “exceptional circumstance” to warrant such a cost award.
I believe that the “takeaways” from this case are as follows:
- The CAT is willing to enforce provisions in a Declaration or Rules relating to nuisance pets.
- The CAT is willing to order violators to pay “pre-CAT costs” (based upon supporting indemnification provisions in the condominium’s governing documents); but condominium corporations are expected to make reasonable alternative efforts to resolve problems before engaging legal counsel.
- The CAT is generally NOT willing to order violators to pay “CAT costs” (apart from the specific fees paid to the CAT). This is most unfortunate for condominium corporations who are faced with having to incur such costs because of the violators in their communities, and even despite clear provisions (in the condominium’s governing documents) stating that the violators are supposed to be picking up such costs!
Stay tuned to Condo Law News to keep up to date on the latest developments on nuisance pets and costs!